It has been said, even by some law professors, that Congress can force Americans to buy health insurance because …well, everybody knows that the “government” can force us to buy auto insurance.

Read on, and I will show you how such statements constitute a serious assault on “federalism” and our constitutional Republic. But first, let us hear from some of these professors.

Michael Seidman, professor of constitutional law at Georgetown University Law Center, appeared on November 14, 2009 on Fox and Friends Saturday. He said, in support of his affirmative answer to the question, “Can Congress force Americans to buy health insurance?”,

…the government, ah you know, the government requires us to buy car insurance, it requires us to to engage in to buy the social security to buy uh social security insurance essentially… [transcribed to the best of my ability]

Nan Hunter, law professor at Georgetown’s O’Neill Institute for Global and National Health Law, gave the Introduction at a debate on October 26, 2009 between Professor Seidman and constitutional attorney David Rivkin. The topic was “Are health care purchase mandates constitutional?”. After describing Seidman as “one of the ah leading constitutional law scholars in the nation”, Hunter said,

…it is clear that government can mandate the purchase of private insurance before one engages in certain activities, for example, driving. It can mandate the purchase of automobile insurance as a quid pro quo for ah legally being able to drive. However, individuals can elect not to drive and therefore obviously not have to purchase auto insurance…

Timothy Stoltzfuz Jost, law professor at Washington and Lee University, participated in Politico’s September 18, 2009 forum on “Healthcare: Is ‘mandatory insurance’ unconstitutional?”. Jost wrote that while the “claim” that “health reform” is unconstitutional is a “talking point” “pushed” by “Republicans”, “former Bush officials” such as David Rivkin, Fox News Commentator Andrew Napolitano, town hall attendees, and tea party demonstrators, “[i]t is not…an argument taken seriously by constitutional scholars.” Jost went on to say,

The only plausible question is whether Congress has the authority under the Interstate Commerce Clause to require individuals to purchase health insurance. The primary difficulty here is that it is hard to think of a precedent where Congress (or for that matter the states, other than Massachusetts with its recent health care reforms) have required residents to purchase a particular product or service. Auto liability insurance mandates come to mind, but these are only imposed on persons who use the public roads.

Thomas J. Whalen, social science professor at Boston University, wrote on the Politico forum:

…the commerce clause seems sufficiently expansive enough [sic] to include mandatory health insurance for all Americans. After all, for some time now we’ve all been required to have auto insurance to operate our motor vehicles. And last time I checked, the Republic is still standing.

Apparently, Whalen is not a lawyer, though his biography informs us that he is an “expert”. And Jost said i t was “…correct to invite…political experts to respond, because this is not a serious legal issue..”.

So! While social science professors who agree with Jost are qualified to opine on this constitutional issue; “Republicans”, “former Bush officials” such as constitutional attorney David Rivkin, Judge Andrew Napolitano, town hall attendees and tea party demonstrators are most emphatically not. Their position, you see, is not “serious”.

By their invocation of the auto insurance analogy, such “expert” and “scholarly” professors as Seidman, Hunter, Jost and Whalen show that they have no understanding of “federalism”; or they think you don’t, and they are trying to take advantage of your supposed ignorance. So, is their metaphorical place under the dunce’s cap, or is it Antenora in the Ninth Circle?

What is “federalism”? “Federal” refers to the form of our government: An alliance of Sovereign States associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.

James Madison, Father of the U.S. Constitution, illustrated “federalism” in Federalist No. 45 (9th para):

The powers delegated by the proposed Constitution to thefederal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[italics added]

…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…[italics added]

… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[italics added]

This, Folks, is “federalism”: The delegation by The People and their States of a few enumerated powers to the “federal” government; and THE RETENTION OF THE GENERAL POWERS – those which “concern the lives, liberties and properties of the people” – BY THE SOVEREIGN PEOPLE AND THEIR STATES.

Article I, Sec. 8, U.S. Constitution, shows that the enumerated powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform commercial system (bankruptcy, a monetary system, punishment of counterfeiting, a standard of weights and measures, and issuance of patents and copyrights). That’s basically it!

As Madison said, it is the States which retain an “inviolable sovereignity” over “the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”. It is THE STATES which have required drivers to purchase auto insurance! The federal government has no authority under The Constitution to require us to buy any kind of insurance.

By saying that Congress can force you to buy health insurance because “the government” can require you to buy auto insurance, these “scholarly” and “expert” professors are obliterating “federalism”. Do they not understand what they are doing? Or, are they trying to deceive you?

The concept of “federalism” is so easy to grasp that surely these professors can understand it. After all, some non-lawyers among this writer’s contacts – even those who attend tea parties and town hall meetings – seem to understand it quite well. PH

I visited your blog and see that you too are interested in the subject which is nearest to my own heart: God’s model of polity and the false doctrines taught by the Christian churches which blind them to what the Bible really says. At the risk of sounding presumptuous, I ask you to read my post (including the link therein) in the Discussion Forum of the Constitution Study Group on Tea Party Nation, entitled, “THE U.S. CONSTITUTION IS BASED ON GOD’S MODEL OF POLITY”…

and then, let’s talk. I don’t know if one can read it without joining TPN. Anyway, I teach the Constitution Study Group there. The pastors have betrayed their sacred document (the Bible) as much as the lawyers have betrayed ours (the Constitution).

I tried to post this on your blog, but “blog spots” keep saying my URL (or whatever) is “illegal”. PH

Here’s a much simpler and more understandable refutation of the whole “auto insurance = health insurance” red herring:

Law does NOT require us to buy auto insurance, or even a car. STATES only require us to own auto insurance if we want to drive on STATE-OWNED roads. People who don’t drive, don’t have to buy auto insurance. Should I have to buy health insurance in order to BREATHE? That analogy suggests that our lives and health belong to the US government.

Yes PH that does make sense, I wasn’t thinking about it that way. I will post your entire article with a link of course. This info needs to be spread around, the general public is so uneducated on the subject of the Constitution and the reason the founders did what they did. As I said this is a great article. I also read the one on Treaties and you are correct on it as well. Contrary to what most think they can not override the Constitution. Your info needs to be spread all over the US. I do believe the Tea Parties are waking up some people as to the Constitution and their rights that they didn’t know they had. Looks like we’re going to get plenty of chances to us the 10th with this current administration. Keep up the good work Ms PH :)

I can get it off your WordPress blog here just fine. Thank your for the assist though. I like this article and the one on Treaties. So far that’s the two I’ve read entirely. People need to be educated and that’s what I try to do from time to time on my blog as well as posting current events, usually political events that are going on at the time. But sticking to the Constitution is my pet pev (don’t know if that’s the correct spelling). I am also a member of a Tennessee Town Hall we could put your articles in as well and a couple in Arkansas that would enjoy seeing the info. I am also in another large group that is nation wide we could post your articles in as well. The way I see it, the more exposure you could have over the internet the better it would be.

Thank you again for another great well written article. Your articles are invaluable to me.
It is just a shame that some law professors do not give the full truth about Constitutional law, whether it is intentional or to deceive. It pollutes the minds of students if they don`t know the real truth which they can then form their own opinion. But truth prevails.
Looking forward to more articles.

I agree with all of this, Publius, but there is one aspect of the “health insurance – auto insurance” analogy that is fitting: pre-existing conditions. No auto insurance provider could survive were it forced to cover damage pre-dating the inception of a policy. The fate for medical insurance providers would be the same (but perhaps this is the point).

Insurance does not protect your car or your health, nor is it a maintenance plan for either. Insurance is a financial instrument designed to hedge against the risk of financial loss. Insurance protects your finances against loss resulting from costs incurred by misfortunes befalling your assets (including your personal health).

If the people and their “representatives” are seemingly unable to grasp such a simple concept as the nature and purpose of insurance, why should we be surprised that they cannot understand the nature and purpose of the U.S. Constitution?

“Do they not understand what they are doing?”

A better question might be, do we not understand what *they* are doing? And what are *we* going to do to stop them? It’s fairly obvious upon which side of Liberty and Tyranny these measures fall.

About

Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following: There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus.

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WARNING AGAINST A CON-CON a/k/a “constitutional convention” or “Article V convention” or “Convention of the States”: Do not be deceived by the people who are calling for a convention. Go here and read the warning of James Madison and former US Supreme Court Chief Justice Warren Burger. Be sure to read “Twenty Questions About a Constitutional Convention”: http://www.eagleforum.org/topics/concon/

In these two articles, investigative journalist Kelleigh Nelson exposes the nefarious forces – on the phony “Right” – involved in the push for an Article V convention. The People you think are on your side are betraying you. http://www.newswithviews.com/Nelson/kelleigh136.htm

Dr. Edwin Vieirareminds us that the “necessary & proper” clause (Art. I, Sec. 8, last clause) vests in Congress the power to make all laws necessary & proper to execute its delegated powers. Since Article V delegates to CONGRESS the power to call the convention, Congress would be within its constitutional authority to organize the Convention anyway it wants, and to appoint whomsoever it wishes as delegates.http://www.newswithviews.com/Vieira/edwin262.htm

Do not be deceived by the “scholarly research” of former law professor, Rob Natelson. Natelson trumpets the crazy theory that alleged “customs” practiced in our “Founding Era” provide binding principles which govern conventions called under Article V of our Constitution! Here is JWK’s excellent expose’ of Natelson’s absurd theory:http://www.freerepublic.com/focus/bloggers/3062146/posts

“The sacred rights of mankind are not to be rummaged for among old parchments or musty records. they are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power.”

“As democracy is perfected, the office of the President represents, more and more closely, the inner soul of the people. On some great and glorious day, the plain folks of the land will reach their heart’s desire at last, and the White House will be occupied by a downright fool and a complete narcissistic moron.”

H.L. Mencken, The Baltimore Evening Sun, July 26, 1920.

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“If the America People do not rise up and defend their Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people who it was designed to control and regulate?” Johnwk

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“Any man who thinks he can be happy and prosperous by letting the Government take care of him, better take a closer look at the American Indian.” Attributed to Henry Ford.

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I saw a movie where only the military and the police had guns: Schindler’s List.

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“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.” Autobiography of Mark Twain

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PERMISSION to re-post: You may re-post my papers on your own sites, provided you do not change the text, retain all the hyperlinks, and have a link back to my website. However, since I periodically revise my papers, the better practice is to post a para or so and have a “continue reading here” which links to my site. That way, your readers will have the most recently revised edition.

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Where do Rights come from? God? The Constitution? The supreme Court? Or the “government”? I’ll show you. It is important that you understand. (videos in two parts totaling 22 minutes)

I am delighted to learn of your intense & increasing interest in learning the original intent of Our Constitution! Please feel free to browse around to your hearts’ content.

Also, if any of you have questions as to the original intent of any provision or provisions of Our Constitution, please feel free to post your questions.

To learn Our Constitution, you will need to get a copy of The Federalist Papers; and for word definitions, Webster’s 1828 Dictionary of the American Language. You can find The Federalist Papers on line; and here is an online copy of Webster’s 1828 Dictionary: http://webstersdictionary1828.com/

As I trust you know, word meaning are like the clouds: meanings change as time passes. So, naturally, we want to focus on the meanings enjoyed by Words during the Era of our Founding.

OK! Here is your homework assignment: Get a hard copy of The Declaration of Independence and our Constitution. Read them cover to cover. Using different colored pencils, highlight (1) the powers of Congress, (2) the powers of the Executive Branch, and (3) the powers of the judicial branch.

With a 4th color, highlight all references to God in both Documents!

Please pay particular attention to what the Declaration says about the SOURCE of our Rights. Mark that with a 5th color.

Surprising, isn’t it?

I will look for a good source from which you can buy pocket copies of the Declaration of Independence and Constitution so that you can buy lots and distribute them to your co-workers, family and friends.

Again, do not be shy about posting your questions! I am just a little old lady, and do not bite.

Kindest regards, Publius Huldah.

Publius Huldah explains when Nullification of unconstitutional acts of the Legislative, Executive, or Judicial Branches of the federal government is required by Article VI, clause 3, U.S. Constitution.